Citation Nr: 0804806
Decision Date: 02/11/08 Archive Date: 02/20/08
DOCKET NO. 06-04 237 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Entitlement to service connection for depressive disorder or
other acquired psychiatric disorder.
ATTORNEY FOR THE BOARD
A. Henning, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1972 to July
1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2004 rating decision of the
Boise, Idaho, Regional Office (RO) of the Department of
Veterans Affairs (VA).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required on his part.
REMAND
After a thorough review of the veteran's claims file, the
Board has determined that additional development is required
prior to the adjudication of the veteran's claim.
The veteran has stated that he was traumatized by an
environment of continuous hostility in the Army and that his
mental disability is a result of that experience. After
eleven months of military service the veteran received an
honorable discharge based on family hardship due to his
father's failing health.
While the veteran was in the Army, his service medical
records (SMRs) show that he was referred for a mental hygiene
consultation for a possible change of his military operation
specialty (MOS) of cook to another MOS. The SMR report from
the consultation states that the veteran appeared to be
acting in a passive-aggressive manner to get what he wanted.
The veteran's claims file includes VA mental health records
dated in 2004, 2005, and 2006 regarding treatment received by
the veteran for chronic depressive disorder. The veteran
asserts that his depression was caused by his military
service. An August 2006 letter written by a VA clinical
social worker states that the veteran was in treatment at a
VA facility for several years with a diagnosis of chronic
depression. The letter states that a review of the veteran's
military records indicates a level of depression, anger, and
substance abuse that started in the military.
The Board finds that the record lacks sufficient evidence to
make a decision on the veteran's claim, and a VA medical
examination is necessary. See 38 U.S.C.A. § 5103A(d); see
also E.F. v. Derwinski, 1 Vet. App. 324 (1991) (VA had a duty
to assist veteran with the development of his claim of a
mental disorder by ordering a comprehensive psychiatric
exam).
Accordingly, the case is REMANDED for the following action:
1. Obtain copies of the veteran's VA
mental health treatment records covering
the period from August 2006 to the
present.
2. Schedule a VA mental health
examination for the veteran. The
veteran's claims folder is to be made
available to the examiner for review of
pertinent documents therein. The
examination report should reflect that
such a review was conducted. The examiner
should particularly review the VA clinical
social worker's August 2006 letter and the
VA records dated in 2004 and 2005 that are
related to the letter. The examiner
should state an opinion as to the
likelihood that the veteran's diagnosed
mental health disorder(s) was/were
incurred in or aggravated by his military
service.
It would be helpful if the examiner would
use the following language, as may be
appropriate: "more likely than not"
(meaning likelihood greater than 50
percent), "at least as likely as not
likely" (meaning likelihood of at least 50
percent), or "less likely than likely" or
"unlikely" (meaning that there is a less
than 50 percent likelihood).
The term "at least as likely as not
likely" does not mean "within the realm
of medical possibility." Rather, it
means that the weight of medical evidence
both for and against a conclusion is so
evenly divided that it is as medically
sound to find in favor of that conclusion
as it is to find against it. The examiner
should provide a complete rationale for
any opinion provided and reconcile
conflicting opinions in the record, to the
extent possible.
3. Review the veteran's claims file to
ensure that the foregoing requested
development has been completed to the
extent required. Review the VA mental
health examination report to ensure that
it is responsive to and in complete
compliance with the directives of this
remand. If it is not, implement
corrective procedures. Any compliance
failure could result in a further remand.
See Stegall v. West, 11 Vet. App. 268
(1998) (The Board errs as a matter of law
when it fails to ensure compliance with
remand orders.)
4. After undertaking any development
deemed essential in addition to that
specified above, readjudicate the matter of
service connection for depressive disorder
or other acquired psychiatric disorder. If
a full grant of available benefits for the
claim is not awarded, provide an
appropriate supplemental statement of the
case to the veteran and allow him an
opportunity to respond. When the response
time has expired and no further evidence
requires initial RO consideration, return
the case to the Board for appellate review.
No action is required of the veteran until further notice.
However, the Board takes this opportunity to advise the
veteran that making the efforts directed in this remand, as
well as any other development deemed necessary, is required
for a comprehensive and correct adjudication of his claim.
His cooperation in VA's efforts to develop his claim,
including reporting for any scheduled VA examination, is both
critical and appreciated. The veteran is also advised that
failure to report for any scheduled examination may result in
the denial of a claim. See 38 C.F.R. § 3.655 (2007).
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999). This claim must be
afforded expeditious treatment. The law requires that all
claims that are remanded by the Board of Veterans' Appeals or
by the United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2007).
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).